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IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

Case No: 1603/2015

Heard on:     28/11/2016

Delivered on: 13/01/2017

In the matter between:

HENRY JOHAN NES KNOETZE                                                                           APPLICANT

And

HENRY CASPARUS KNOETZE N.O.                                                      1^st RESPONDENT

HEN RY CASPARUS KNOETZE                                                            2^nd RESPONDENT

MAGDALENA  ELIZABETH  KNOETZE N.O.                                       3^rd RESPONDENT

MAG DALENA ELIZABETH KNOETZE                                               4^th RESPONDENT

HENDRICK CORNELIUS LE ROUX N.O                                            5^th RESPONDENT

HENDRICK CORNELI U S LE ROUX                                                   6^th RESPONDENT

ESTELLE  ELIZABETH  SWART                                                          7^th RESONDENT

MARTHA MAGDALENA   KNOETZE                                                   8^th RESPONDENT

MASTER OF THE HIGH COURT, KIMBERLEY                                    9^th RESPONDENT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

MAMOSEBO J

[1] The applicant, Henry Johannes Knoetze, seeks leave to appeal to the Fu ll Bench of the Northern Cape Division alternatively to the Supreme Court of Appeal against the whole of my judgment and order granted on  24 June 2016 in which the following orders were made:

1.1 The exception relating to the plaintiff s first claim is upheld and the claim is dismissed;

1.2 The exception in relation to the plaintiff's second claim (consisting of exception 2 and 3) is upheld;

1.3 The plaintiff is afforded the oppo1tunity to amend his Particulars of Claim (the second claim), i f so advised, within 20 days of this order, failing which the defendant i s granted leave to apply on the same papers, suitably supplemented, for dismissal of the action; and

1 .4 The plaintiff pay the costs of the exception application which includes the costs associated with the submission of the supplementary note.

[2] The grounds upon which  the  applicant  relies  comprise  about  12  pages. The applicant has also listed 14 findings I made which he alleges I erred and submitted that there are therefore reasonable prospects of success on appeal. Listing and dealing with all of them will render this judgment unnecessarily prolix.  See Songono v Minister of Law  and Order   1996 (4) SA 384 (E) at 385C - E.

[3] The issues in the main case were really three exceptions raised by the first to sixth respondents. I found that the allocation ("toekenning") of the farm to the applicant fell under  the Alienation of Land Act, 68 of 1981 and accordingly upheld the exception and dismissed the plaintiff's (applicant's) claim. This finding is final and dispositive in effect. It is my view that there are nevertheless no reasonable prospects of success on appeal against the finding.

[4] In the second exception I found that the applicant lacked the necessary locus standi in judicio to act for and on behalf of the trust. Adv Van der Walt SC, appearing for the applicant, submitted that 'an amendment will serve no purpose as Mamosebo J has already determined the position '. This submission is, in my view, without merit. It will assist the applicant to amend its pleadings before proceeding with the main action, if so advised. The applicant has been afforded an opportunity to amend its pleadings which renders the matter not final in effect and hence not appealable. See Zweni v Minister of Law and Order 1993 (l) SA 523 (A) at 5321 and 536B-D.

[5] I therefore find that the applicant has no basis to seek the relief sought as there are no reasonable prospects of success on appeal. See s 17 of the Superior Courts Act, 10 of 2013.

[6] In the result the following order is made:

The application for leave to appeal is dismissed with costs.

______________________

MAMOSEBO J

NORTHERN CAPE HIGH COURT

For the applicant:                            Adv D. J . Van der Walt SC

Instructed by:                                  Duncan & Rothman Inc

 

For the 1st - 5th respondents:         Adv S.C. Kirk-Cohen SC

Instructed by:                                   Haarhoffs Inc.

 

For the 6^th respondent:                    Adv S. Grabler

Instructed by:                                   Haarhoffs Inc

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